Tran v Department for Correctional Services & Ors - [2006] SADC 42

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Appeal Against a Master's Decision)
TRAN v DEPARTMENT FOR CORRECTIONAL SERVICES & ORS
Judgment of His Honour Chief Judge Worthington
13 April 2006
PROCEDURE - COURTS AND JUDGES GENERALLY - JUDGES - POWER TO CONTROL PROCEEDINGS
PRACTICE - REPRESENTATION OF PARTY BY UNQUALIFIED PERSON - DISCRETION
Appeal from a Master refusing an application by the plaintiff for RWC to appear for him as a lay advocate - principles to be applied - discretion - application considered afresh - application refused and appeal dismissed - RWC already assisting plaintiff with this action - arrangement between plaintiff and RWC re proceeds of judgment - question of whether RWC in breach of Legal Practitioners Act referred to Attorney General.
Legal Practitioners Act 1981 s21 and s51; Powers of Attorney and Agency Act 1984 s5, referred to.
Giancaspro v SHRM (Australia) Pty Ltd [2005] SASC 340; Damjanovic v Maley (2002) 55 NSWLR 149, applied.

TRAN v DEPARTMENT FOR CORRECTIONAL SERVICES & ORS
[2006] SADC 42

This is an appeal against the order of a Master refusing an application by the plaintiff, Lam Hong Tran, that a non-lawyer, Robert Wayne Collins, be permitted to act as his advocate in this action. I dismissed the appeal on completion of the hearing and I now state my reasons for doing so.
The plaintiff was convicted of murder in 1999 and is serving a sentence of life imprisonment with a non parole period of 14 years. He brings this action against the Department for Correctional Services (first defendant), Advertiser Newspapers Pty Ltd (second defendant), NWS Channel Nine (third defendant), Network Ten (Adelaide) Pty Ltd (fourth defendant) and Channel Seven Adelaide Pty Ltd (fifth defendant). It is unnecessary to set out in detail the issues raised by the plaintiff against the various defendants. The causes of action relied on by the plaintiff are not clear but the claim is related to his conviction and incarceration. For present purposes it is enough to say that the plaintiff claims damages for breach of statutory duty and negligence against the first defendant and, as against the other defendants, damages resulting from the wrongful publication of material about him brought about by the first defendant’s failures but also their own failures to comply with statutory obligations.
Mr Collins, who has no legal qualifications, is also serving a sentence of imprisonment. He has been helping the plaintiff to prepare pleadings and other documents lodged with the court in this action. An application by the defendants was listed for hearing before the Master on 25 January 2006 in which they sought an order for summary dismissal of the plaintiff’s claim or alternatively, that the statement of claim be struck out. The present application was listed for the same day and heard as a preliminary matter. It seeks an order that Mr Collins be allowed to appear as a lay advocate for the plaintiff “in this matter”. It could be argued that the plaintiff’s application is limited to the hearing of the dismissal/strike out application but I am content to deal with it on the basis that it has a wider purpose, i.e., to give Mr Collins a right of audience in hearings generally before a Master in this action.
In refusing the application the Master gave short reasons referring to the plaintiff’s request that Mr Collins not be merely a McKenzie friend but act as an advocate on his behalf, and saying “it would not be possible for me to make the order that he appear as your advocate as he is not an admitted practitioner of the court”. He also referred to the practical difficulty of having Mr Collins brought from prison to appear but I do not understand that to have been more than an observation.
In his Notice of Appeal the plaintiff relies on various grounds but, as relevant, he submits that the Master erred by not considering his application on the basis that that the court has a discretion to permit a lay advocate, i.e., one who is not legally qualified, to be heard on behalf of a party. In my opinion that submission is correct. The authorities are conveniently summarised by the Full Court in Giancaspro v SHRM (Australia) Pty Ltd [2005] SASC 340 and they demonstrate that, provided the lay advocate does not act for fee or reward, there is nothing in the Legal Practitioners Act 1981 that would prevent a court, as part of an inherent right to regulate its own proceedings, from exercising a discretion to permit a lay advocate to conduct a case on behalf of a party. As an incorrect test has been applied by the Master, the appropriate course is for me to consider the application afresh.
It was submitted for the defendants that the guiding principle to be applied by the court in exercising the discretion is as set out by Bleby J, with whom Doyle CJ agreed, in Giancaspro where he said at para 12:
“… it is a discretionary power which must be exercised specially in a particular case and not by way of general practice, and it is properly exercisable only when its exercise is necessary for the administration of justice, and not when it is merely desirable for convenience, expedition and efficiency.”
However, there is a difficulty with this submission. In support of that proposition his Honour referred to the judgment of the Privy Council in O’Toole v Scott [1965] AC 939 at 958. With all respect to the Full Court, it appears that there has been a misreading of that judgment. Their Lordships refer at page 958 to the two points mentioned by Bleby J, stating that they were contentions by the appellant, but they go on to say at page 959:
“There is, however, no sound basis for either point. ……. There is no reason in principle for limiting the discretion as suggested. It can be exercised either on general grounds common to many cases or on special grounds arising in a particular case. Its exercise should not be confined to cases where there is a strict necessity; it should be regarded as proper for a magistrate to exercise the discretion in order to secure or promote convenience and expedition and efficiency in the administration of justice.”
It may be that this will need to be reconsidered by the Full Court but it is unnecessary to take that any further at this stage because, however the test is formulated, for all practical purposes its application is governed by six factors identified by Stein JA in Damjanovic v Maley (2002) 55 NSWLR 149 at 162-164 as those relevant for a court to take into account when considering whether to exercise the discretion to allow a lay advocate to represent a party. These were adopted by Bleby J in Giancaspro at paras 13-18 and they are as follows:
1.     The complexity of the case
2.Genuine difficulties of the unrepresented party – e.g., language difficulties and emergencies
3.The unavailability of disciplinary measures and a duty to the court by lay advocates
4.     Protection of the client and the opponent
5.     Lay advocates in inferior courts and tribunals
6.     The interests of justice
As to the first factor, it is clear from the pleadings and interlocutory activity to date that there are issues of some complexity. These have culminated in the application to dismiss/strike out which is still before the Master. It is less likely that a court will allow non-legal representation in such a case. It is convenient to consider the fifth factor in conjunction with this. In courts such as local courts and tribunals where litigants are often unrepresented it is more likely that leave will be granted to lay advocates because matters are relatively straightforward and uncomplicated. That is not the case here.
As to the second factor, it is clear from the transcript of the hearing before the Master, and it was obvious to me at the hearing of the appeal, that the plaintiff does not have any difficulty with language. There is nothing else to suggest this case falls into an emergency situation.
Bleby J referred to the significance of the third factor in Giancaspro at para 15:
“ ….. the Court is entitled to place reliance on the duty of a legal practitioner to act with candour towards the Court and not knowingly to mislead the Court, on pain of disciplinary measures being taken against him or her. That is not the position of a lay advocate.”
It is convenient to consider the third factor in conjunction with the fourth and in regard to that his Honour said at para 16:
“Fourth was the protection of the client and the opponent, clients being placed at a considerable risk at the hands of unqualified, unaccredited and uninsured lay advocates.”
There is evidence that Mr Collins has a long history of offending, much of it for crimes of dishonesty including false pretences, dishonest dealings and fraud. The court could not be confident that Mr Collins would act with candour or that he would not knowingly mislead either the court or the plaintiff. Nor would it be reasonable to expect the representatives of the defendants to rely on his word. Mr Collins’s history gives reason to be concerned that there would be a risk to the plaintiff’s interests if Mr Collins were permitted to act on his behalf as an advocate.
Material submitted by the plaintiff at the hearing of the appeal shows that on 16 February 2006 the plaintiff executed a document that purports to be a General and Enduring Power of Attorney appointing Mr Collins as his attorney, with a signed acceptance by Mr Collins as donee. For present purposes I leave aside the contents of this document, some of which may affect its efficacy, and will assume that the Power of Attorney is valid.
A right of audience in court is granted to (as relevant) legal practitioners under s51 of the Legal Practitioners Act. There is also, of course, the power to exercise a discretion to allow a lay advocate to appear. However, the fact that a person holds a Power of Attorney on behalf of someone who is a party to an action does not give the donee any right to appear on behalf of the donor. Section 5 of the Powers of Attorney and Agency Act 1984 confers on the donee “authority to do on behalf of the donor anything that he can lawfully do by an attorney.” There is nothing in the Legal Practitioners Act or the Rules of Court that would permit that person to appear as of right. In my opinion, the plaintiff is not relieved of the need to obtain leave for Mr Collins to appear by having executed a Power of Attorney in his favour. Were it otherwise, a party could confer a right of audience on a lay advocate simply by executing a Power of Attorney.
In light of submissions made for the defendants because of the criminal antecedents of Mr Collins, the issue of whether there might be any arrangement about a fee or reward became a matter of some significance, but one on which the evidence was silent. I asked the plaintiff if he was prepared to inform the court about that. He agreed to do so and gave evidence.
The statement of claim quantifies damages at $1 million but that is of no significance. What is important is that it is a claim for damages. The plaintiff said in evidence that he intends to apply any money he is awarded in this action to pursuing an appeal in the High Court of Australia against his conviction for murder, and he said that Mr Collins is assisting him with that appeal. The arrangement he has with Mr Collins is that all of the money he may be awarded in this action will be given to Mr Collins to apply towards the cost of that appeal, and that Mr Collins can retain any balance remaining after payment of those expenses. The nature of the expenses he expects to incur in prosecuting the appeal was not explained.
It appears that Mr Collins has played a significant role in assisting the plaintiff in this matter to date, and the plaintiff’s evidence about the arrangement he has with him raises another issue relevant to the exercise of the discretion. It is clear from Giancaspro that the court would only consider exercising the discretion in favour of allowing a lay advocate to act for a party if it was satisfied that the lay advocate was not acting for fee or reward in breach of the Legal Practitioners Act. By virtue of s21(4)(b) a person “acts for fee or reward if the person acts for, or in expectation of, a pecuniary benefit or material advantage”. Having regard to the plaintiff’s evidence, the court could not be satisfied that if Mr Collins was allowed to act as a lay advocate he would not be in breach of that Act.
The sixth factor is the general consideration of whether it would be in “the public interest in the attainment of the ends of justice” to permit Mr Collins, rather than a legal practitioner, to act as the plaintiff’s advocate: Damjanovic at 163. It
follows from what I have said that it would not be in the interests of justice to do that. On a clear balance, the discretion should not be exercised in favour of the plaintiff’s request and the application should be refused.
Orders were made on 22 March 2006 dismissing the appeal, awarding costs on the appeal to the defendants and directing that time to appeal commence to run on the date of delivery of these reasons.
There is a further matter. It appears from the papers that Mr Collins has played a significant role in assisting the plaintiff with the preparation of documents and interlocutory arguments. Having regard to the plaintiff’s evidence about his arrangement with Mr Collins and the provisions of s21 of the Legal Practitioners Act, the question arises as to whether there has already been a breach of that Act by Mr Collins. I direct the Registrar to bring that matter to the attention of the Attorney General.